SchiappaSays

Friday, January 9, 2015

2015 marks the 25th anniversary of three articles of mine dealing with the origins of Greek rhetorical theory (1990abc). I hope to publish an article later this year talking about the production and reception of those 1990 articles, but in the meantime, I thought it might be useful to interested readers to summarize the arguments I have been trying to make over the years, divided into their major categories. Thanks for reading!

Constructive Claims about Protagoras

·The historical
significance of Protagoras’s fragments is clearest when read as advancements of
Heraclitean insights and responses to Eleatic philosophy (2003).

·P’s “there are two logoi
about every thing” fragment is not simply a claim that we can argue about
anything, but an extension of Heraclitean philosophy that represents an
advancement from compositional toward what we would now call attributional
analysis (2003, 89-100).

·P’s “weaker/stronger” logoi fragment is not an amoral description
of rhetoric but as advocating the strengthening of a preferred but temporarily
weaker logos to challenge a less
preferable but temporarily stronger logos
of the same experience (2003, 103-14).

·P’s Human-Measure
fragment is best appreciated historically as a humanist response to Parmenides
monism that implies an early expression of what we now call a frame of
reference and “objective relativism” (2003, 117-30).

·P’s “impossible to
contradict” fragment can be understood as anticipating Aristotle’s law of
noncontradiction, and resonates with P’s other fragments about objects’
qualities and frames of reference (2003, 134-39).

·P’s particular uses of
the Greek verb “to be” (einai) is
highly unusual for his time as the word was a key object of analysis of those
we now call philosophers.His use of the
term, especially in the human-measure fragment and a passage “concerning the
gods” was distinctive and provocative (2003).

·P’s “concerning the
gods” fragment is an early expression of secular humanism that may have opened
a lost treatise about humans, perhaps as described by Plato in P’s “Great
Speech” in the dialogue Protagoras
(2003, 141-48).

·P may have advanced an
analogy that became common in classical Greece between speech and medicine: Logos is to the mind/soul as medicine is
to the body (2003, 166-68).

·As others have noted, P
provided the first theoretical rationale for participatory democracy,
describing logos as the best means by
which the polis deliberates and makes decisions (2003, 175-87).

·Protagoras was not refuted
and rejected by Plato and Aristotle as much as his ideas were assimilated into
their thinking about what we now call epistemology and metaphysics (2003,
190-94).

Constructive Claims about Gorgias

·G’s distinctive style
played an important transitional role in promoting and advancing
performance-prose composition in early Greek literature.Descriptions of his prose as “poetic” refer
to his word choice rather than his prose meter or rhythm (1999, 85-113).

·G’s Helen may have inaugurated the prose genre of the encomion; G
advanced 5th century “rationalism” by enacting innovations in prose
composition; identifying Helen as
“epideictic” or a veiled defense of Rhetoric is problematic; and Helen’s most significant theoretical
contribution was to provide a secular account of the workings of logos—an account that functioned as an
exemplar for later theorists (1999, 114-32).

·G’s On Not Being (ONB) has been misunderstood at times by trying to
classify it as Rhetoric or Philosophy
at a time when the categories were fluid.ONB was a response to Eleatic tracts about “Being” by Parmenides,
Melissus, and Zeno that functioned both as entertainment and serious philosophy
(133-47).

·A formalization of G’s ONB suggests that if viewed in
isolation, G’s argument is unpersuasive and invalid, but if the intertextual
linkages with Parmenides are noted, G’s argument gains both rhetorical and
philosophical strength (148-52).

Constructive Claims About 4th Century
BCE Theory

·The earliest surviving
uses of the word rhêtorikê are from
the early 4th century, and the term may have been coined by
Plato.Plato also coined Greek words for
the verbal arts of dialectic, eristic, and antilogic (1999, 2003).

·Isocrates never used the
word rhêtorikê in his writings,
instead describing his education as philosophia
and logôn paideia, a fact that
problematizes accounts that position him championing Rhetoric over Philosophy
(1999, 166-80).

·Isocrates can be read as
a forerunner to contemporary pragmatism, both in his emphasis on practical
philosophy and connecting pedagogy with civism (1999, 180-84).

·Isocratean philosophia can be understood as the
cultivation of practical wisdom through the production of ethical civic
discourse (2010, 43-66).

·Aristotle’s theoretical
account of Epideictic rhetoric is original and redescribes a set of disparate
rhetorical practices (speeches of praise, festival orations, and funeral
orations).His formulation arguably subsumed
and subverted these ideological significant categories of speech making (1999,
185-206).

·Dialegesthai (holding dialogue) can
be appreciated as a sophistic term of art. Plato’s coining of dialektikê was part of an on-going
effort in his work to “discipline” dialegesthai
into his philosophical theory & pedagogy (2010, 17-41).

·Unlike such terms as rhêtorikê and dialektikê, the Greek words for Oratory (rhêtoreia) and “to orate” (rhêtoreuein)
are rarely used in the 4th century and were put to very little
conceptual use (1999, 155-61).

·Analysis of the terms
used to describe public deliberation in Plato, Isocrates, and Aristotle provide
a useful window to their varying views on deliberation, democracy, and public
discourse.Dêmêgoria and symboulê,
in particular, are the terms Aristotle employs to provide his rehabilitation of
public deliberation (2010, 67-113).

·The so-called Rhetoric to Alexander does not use the
word rhêtorikê, thus providing an
interesting text of the 4th century outside of the
Platonic/Aristotelian tradition. Arguably the text has affinities with what
George A. Kennedy has described as philosophical, sophistic, and technical traditions, as well as an
early treatise on argumentation (2010, 115-36).

Deconstructive Claims:

·The Standard Account is
Flawed on Each of the Following Points (1999).

1.The
Art of Rhetoric originates with Corax of Sicily around 467 BCE.

2.Corax was probably the teacher of Tisias, a fellow Sicilian.

3.Corax and/or Tisias authored the first technê, or book designated as an Art of Rhetoric.

4.Corax/Tisias may have been the first to define rhetoric, specifically as
the “artificer of persuasion.”

5.An
important contribution of Corax/Tisias’ handbook was the identification of the
parts of forensic speeches.

6.The
primary theoretical contribution was their identification of the “argument from
probability.”

7.By
the end of the 5th century CE, written technical handbooks were
commonly available to which people could turn to learn rhetoric.

8.Most early teaching of the Art of Rhetoric, including that of
Corax/Tisias, concentrated on forensic rhetoric.

9.At
least some of the handbooks included discussion of style.

10. No 5th century BCE rhetorical
handbook exists now because Aristotle’s writings made them obsolete.

11. Though specific doctrines may have
varied, there was a commonly identified group of individuals in the 5th
century known as the Sophists: Protagoras, Gorgias, Hippias, Prodicus,
Thrasymachus, Critias, & Antiphon.

12. The most important shared characteristic
of the Sophists was that they all taught an Art of Rhetoric.

13. The rhetorical teaching of the Sophists
was amoral.

14. The Sophists were relativists who
eschewed any positive notion of “truth” in favor of subjectivism.

15. The Sophists were more concerned with
teaching political success than pursuing “truth,” per se.

17. Plato’s philosophical rhetorical theory
can be distinguished from Sophistic rhetorical theory by its commitment to
truth—even when truth conflicts with political success.

·Contrary to some
historical accounts, a standard division of speeches into prooemium,
prosthesis, diegesis, pistis, and epilogos cannot be documented prior to the 4th
century, nor can such terms be documented as terms of art in the 5th
century applied to speeches or prose discourse (2010, 137-70).Poetic and epic compositional habits
described as “ring composition” are likely better explanations for recurring
prose patterns (1999, 105-10; 2010, 157-67).

·George A. Kennedy’s categories
of technical, sophistic, and technical rhetoric are problematic as descriptors
of 5th century texts relevant to the history of rhetorical theory
(1999, 30-82).

Methodological/Theoretical Claims

·A useful distinction can
be made between Historical Reconstruction of historical texts and their
Contemporary Appropriation for theoretical or pedagogical inspiration. Both
activities are valuable and are judged by different criteria, with the
avoidance of anachronism being definitive of historical reconstruction (1995; 2003,
64-85).

·In historical
reconstruction, it is sometimes more useful and interesting to see what a
particular author does than what s/he
means.That is, sometimes the most important
historical contribution of an author has to do with innovative vocabulary,
syntax, or patterns of reasoning than the content of their texts, per se (1999,
2003, 2010).

·The history of Greek
rhetorical theory can be enhanced with study of emerging “terms of art” about
persuasive speaking and argumentation (2010, 1-16). To this end, a preference for our best
approximation/reconstruction of the original words of past theorists is
desirable, along with recognition that the dominant sources on the Older
Sophists (Plato and Aristotle) must be used with the utmost care and concern
for distortion (2003).

·Historical
reconstruction of 5th century texts requires sensitivity to the
transition between orality and literacy and the changing compositional
practices taking place during that time (1999, 2003).

·A useful distinction can
be made between explicit theories of
rhetoric and implicit or “undeclared”
theories (2010, 139-141).

·Though any act of
translation requires the imposition of categories that might be unrecognizable
to historical figures, care must be taken not to allow categories such as
Philosophy and Rhetoric to overly limit our understand of texts created before
those categories were established (1999, 2003, 2010).

·Part of the experience of rhetorical
salience is how we value similarity
and difference.Historical reconstruction tends to value what
is different and unfamiliar about a historical text in order to understand
different ways to experience and conceptualize the world, while contemporary
appropriation tends to value points of similarity between historical texts and
current needs and interests (1996; 2003, 64-69, 205-12).

·Following Gadamer and Ricoeur, there is an analogy between
engaging historical texts and ethical ways of engaging an Other. Though “pure”
access to the past or Other is impossible, to treat Gorgias, Protagoras,
Isocrates, etc., ethically and respectfully involves attending to their
differences from us before we move to assimilating them into our categories
(1999, 167-68).

·One can be committed to
antiessentialism and antifoundationalism and still be a historian.One can and should acknowledge the
contingency and constructedness of “facts” and interpretations, while still
preserving the genre of writing known as history (1996; 1999, 56-65; 2003,
205-12).

Friday, December 20, 2013

Media scholars have known for a long time that the key to a popular show is to create the space for a wide variety of viewers to find enjoyment. Nearly 40 years ago, a study by Neil Vidmar & Milton Rokeach* found that conservative viewers of the satirical All in the Family were laughing along with the racist/sexist/homophobic Archie Bunker while liberals were laughing at him. The distinction is important and it may explain why Duck Dynasty is now in deep trouble.

Prior to the controversy stemming from DD's "patriarch" Phil Robertson's racist and anti-gay comments, the show could be (at least in theory) enjoyed by a wide variety of viewers. Many viewers identified with one aspect of the show or another, while other viewers learned about a part of Americana that they may have known little about. Narratives are driven by characters (the more interesting, the better) and through their words and actions, they affirm some values and challenge others. Audiences watch programs for a wide variety of reasons, and a cleverly constructed program will make room for a very diverse audience to find pleasure in watching, whether it is to identify with central characters (and laugh or cry with them), or to feel superior to them and laugh at them.
The problem for DD now is that a significant part of their audience will find it difficult to continue to watch and take pleasure from watching someone they know to be so prejudiced (even if he doesn't quite realize it himself). For those with a social conscience, Phil Robertson is no longer a harmless, sometimes even endearing hillbilly who reminds us a bit of Jed Clampett. He is a genuine redneck, complete with prejudices and a level of ignorance that is pretty much the opposite of endearing.

There is no freedom of speech issue here. It is simpler than that: It is business. While certain self-proclaimed Christians now claim to support Robertson's right to be prejudiced toward gays and lesbians and painfully ignorant of race relations, the bottom line is the bottom line, which is that A&E needs to rescue the program so that Americans who don't share Robertson's views can still find a way to enjoy the show. That won't happen while Phil Robertson remains defiantly committed to view points that many viewers find backward and extreme.

Thursday, June 27, 2013

Yesterday I suggested that the SCOTUS’s decisions in U.S. v. Windsor (which struck down a
part of DOMA) and in Hollingsworth v.
Perry (which denied standing to those challenging a lower court ruling that
struck down California’s Prop 8) were “somewhat cowardly,” because the Court
stopped short from stating unequivocally what almost every other recent court decision
has declared:There are no good reasons
to prohibit same-sex marriage.

Let me say that again: Recent court decisions have stated repeatedly
that there are no good reasons to prohibit same-sex marriage.

What is especially significant about these decisions is the fact that
the ‘no good reason’ conclusion has been the finding regardless of what level of scrutiny courts have used.In the 2003 Goodridge decision, the Massachusetts Supreme Judicial Court used
the most conservative, deferential test available, the “rational basis” test,
and found that none of the “reasons” to prohibit same-sex marriage could
withstand scrutiny.In 2008, the
California Supreme Court used a much tougher test known as the “strict
scrutiny” standard and, not surprisingly, also concluded the prohibition could
not stand.In Connecticut (2008) and
Iowa (2009), the courts split the difference and used what is known as the
“intermediate” standard of scrutiny, again concluding there were no reasons
advanced on behalf of the prohibition of same-sex marriage (if interested, I
provide a more detailed summary of these decisions here).

Similarly, the Court of Appeals that decided U.S. v. Windsor before the case went on to the SCOTUS used the
intermediate scrutiny standard and concluded DOMA “does not withstand that review.”U.S. District Court Judge
Vaughn Walker, who issued the ruling striking down California’s Prop 8,
concluded that Prop 8 is unconstitutional “because it denies a fundamental
right [to marry] without a legitimate, much less compelling, reason” (p. 116),
unable to pass even a “rational basis review” (p.117).

The reason for such unanimity is that the motivations behind those who
oppose same-sex marriage are almost always religiously based, and a religious
rationale is constitutionally unacceptable.While there have been quibbles over other reasons, such as whether
same-sex parents provide a good environment for children to be raised, these
other reasons have been found consistently to be either irrelevant to the legal
principles involved, or lacking compelling evidence to support them.So, one more time with feeling, recent court decisions have stated
repeatedly that there are no good reasons to prohibit same-sex marriage.

Today, the SCOTUS denied cert to two cases involving same sex marriage: Brewer v. Diazand Coalition for theProtection of Marriage v. Sevcik.The
second of these decisions is a direct challenge to the state of Nevada’s constitutional
provision defining marriage as solely between a man and a woman.In that decision, District Judge Robert C.
Jones affirmed Nevada’s constitutional prohibition of same-sex marriage based
on the 1971 SCOTUS refusal to consider a challenge to the Minnesota Supreme Court's decision in Baker v.Nelson, denying a Minnesotan’s claim to a constitutional right to marry for
same-sex couples.Though in oral
arguments this past March, SCOTUS justices scoffed at the relevance of this
40-year-old decision, it remains the controlling precedent until the Court
overrules or otherwise replaces it.

By refusing to hear these cases in their next term, the Court is
interpreted as indicating they are not “ready” to take on the fundamental
question of whether laws and state constitutions that forbid same-sex marriage
are constitutional.Such a conclusion
has nothing to do with rationality, good reasons, or legal principles and everything to do with
politics.That is why I claim their
cowardice continues.

Wednesday, June 26, 2013

In this entry I want to answer three questions:What were the decisions about?What did the Supreme Court of the U.S.
(SCOTUS) decide?What do the decisions
mean for the future of same-sex marriage?

What were the decisions about?

U.S. v.
Windsordecides whether or not the Federal “Defense of Marriage Act,” or DOMA,
is constitutional.This law defines
marriage as solely between a man and a woman and this affects any and all
Federal laws concerning marriage; for example, a same-sex couple married in
Massachusetts still cannot file their Federal taxes as a married couple.

A Federal district judge and the Second Circuit Court of Appeals already
have struck down DOMA as unconstitutional.There are two key parts to these earlier decisions: First, what “level
of scrutiny” should laws that discriminate against homosexuals receive?The Court of Appeals said that in light of a
history of discrimination against homosexuality, such laws should receive “intermediate
scrutiny”—a standard not as high as the “strict scrutiny” test used for racial discrimination,
but higher than a mere “rational basis” test.“Intermediate scrutiny” is the standard normally applied to
discrimination based on sex.The
standard requires that the government have an important or compelling rationale
to discriminate against a particular group.The Iowa Supreme Court in 2009 ruled in Varnum v. Brien that the arguments for prohibiting same-sex
marriage must be “exceedingly persuasive” to be constitutional (763 N.W.2d 862
[Iowa 2009]).

The second key part follows from the first: Does the law in question
pass the test?In short, are there
“exceedingly persuasive” reasons to prohibit same-sex marriage?If not, such a law violates the 5th and 14th Amendments’ requirement for equal protection under the law
and would be unconstitutional.Both the
Federal district judge and the Court of Appeals found no such persuasive
rationale and hence both struck down DOMA.

The additional issue before SCOTUS involves the issue of
“standing.”Since the Department of
Justice agreed that DOMA was
unconstitutional, does that agreement deprive SCOTUS of jurisdiction?Further, does the Congressional group
that brought suit (BLAG, or the “Bipartisan Legal Advisory Group”) have legal
standing to challenge the lower courts’ rulings?A good deal of time was spent on these
questions during the Oral Argument before SCOTUS earlier this year.

Hollingsworthv. Perry is a decision about whether California’s “Prop 8,” passed in the 2008
election, is constitutional.Prop 8 was approved
months after the California Supreme Court ruled that the prohibition of
same-sex marriage was unconstitutional.For that reason, the vote effectively took away a right that had been
extended to homosexual citizens for several months.Again, a Federal district court judge and an
appellate court (in this case the 9th Circuit Court of Appeals) struck down
Prop 8 as unconstitutional.The US
Supreme Court had ruled in Romer v. Evans
(1996) that homosexuals could not be singled out as a group to have their
rights denied, as Colorado’s “Amendment 2” had done.In striking down the Prop 8 vote, the 9th Circuit Court echoed the logic of Romer.

As in the DOMA case, the question of legal standing must be
determined.In Hollingsworth, the state government of California agreed with the
court decisions that struck down Prop 8, so one issue SCOTUS must decide is
whether a group of “concerned citizens” who support Prop 8 and helped to put it
on the ballot in 2008 have the legal standing to challenge the court decisions.

What did the Court decide?

U.S. v.Windsor: SCOTUS grants standing to the relevant parties and claims it has appropriate jurisdiction. Then SCOTUS struck down DOMA as unconstitutional. This is significant because they could have let DOMA "die" on procedural grounds by denying standing. But by a 5-4 vote, the Court ruled that DOMA is unconstitutional because it deprives a class of people of their rights, thus denying them equal protection. A key holding reads: "DOMA’s principal effect is to identify and make unequal a subset of state-sanctioned marriages. It contrives to deprive some couples married under the laws of their State, but not others, of both rights and responsibilities, creating two contradictory marriage regimes within the same State. It also forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect."

The majority opinion emphasizes that states traditional regulate marriage and DOMA is suspect for violating that federalist tradition. And because it unfairly burdens same-sex marriages that are legal in certain states, it deprives same-sex couples of equal liberty. Congress violated a "long-established precent" of allowing states to define marriage specifically to discriminate against same-sex couples, which "violates basic due process and equal protection principles applicable to the Federal Government."

(For the purposes of this entry, I am going to skip a discussion of the lengthy dissenting opinions.)

So, DOMA is dead, but the Court stops short of "creating" a basic constitutional right to marry for all same-sex couples. Nonetheless, married same-sex couples will now have the same rights under Federal law that opposite-sex couples have, and that is huge news.

Hollingsworth
v. Perry: The decision in the Prop 8 case is somewhat convoluted. The Court, in effect, threw out the case based on denying standing to those appealing the decision, which was a group of citizens seeking to support Prop 8. The Court instructed the 9th Circuit Court of Appeals that they wrongly granted jurisdiction.

By denying jurisdiction, the Court leaves in place the lower court ruling that Prop 8 is unconstitutional. So Prop 8 is dead, at least for the moment pending subsequent legal actions. But the Court evaded any larger issues involving whether same sex couples should have a constitutionally recognized right to marry.

What do the decisions mean for the future of
same-sex marriage?

There is no question that today's rulings are victories for advocates of same-sex marriage. The death of DOMA is huge, since it gives the same rights to same-sex marriages in states where they are legal that opposite-sex couples have. And it is also big news that same-sex marriage will again be legal in California, barring the rise of what I would call Zombie Prop 8 through efforts of advocates to challenge the trial court's ruling on other grounds. Overall, today's decisions contribute to the national trend to recognize same-sex marriages.

At the same time, the Court refrained from establishing a clear constitutional right to marry for same-sex couples in all states. Indeed, the Court went out of its way to avoid the question of whether a "rational case" can be made to prohibit same-sex marriage. This is not a surprise, in some respects, since it is clear that the Court prefers to allow the matter to percolate through state legislatures. But it is, in my opinion, a short-sighted and somewhat cowardly position to take.

Why? Well, think back to the 1960s. Until 1967, states were allowed to prohibit marriages between whites and blacks. Not unlike the present time, where homosexuals have many recognized legal rights across the country, most forms of overt racial discrimination in matters of law had been struck down. But it wasn't until 1967 in Loving v. Virginia that SCOTUS finally struck down state laws outlawing marriages between people of different races.

So today we did not get the same-sex equivalent to Loving. Indeed, the Court went out of its way to avoid making such a decision. The result is a situation not unlike that faced by mixed-race couples before 1967: Your ability to marry depends on what the state legislature decides. Given the huge majorities in some southern states who oppose same-sex marriage, it could be many years before the right to marry is extended to same-sex couples in every state in the U.S. Nate Silver famously predicted that 44 states will approve same-sex marriage by 2020. Even if he is correct, that means 6 states would still discriminate against same-sex couples.

Eventually the Court will recognize a legal right to marry for same-sex marriage. Not only is this a safe claim from a political standpoint eventually, but the repeated failure of opponents of same-sex marriage to win any substantive reason to deny same-sex marriage in any state or Federal courts over the past few years suggests that further delays in recognizing a legal right to marry is mere politics, and hence mere cowardice.